SEPARATION OF EXECUTIVE AND LEGISLATURE- FULL OR PARTIAL
INTRODUCTION:-
The Constitution of India is the supreme law of India. It was passed by the Constituent Assembly on November 26, 1949 and came into existence on January 26, 1950. It declared the Union Of India to be a sovereign, democratic, republic, assuring its citizens of justice, equality and liberty and to promote among them all fraternity; the words “socialist”, “secular” and “integrity” and to promote among them all “fraternity” ; were added to the definition in 1976 of Constitutional amendment. After coming into effect, the Constitution replaced the Government of India Act, 1935 as the governing document of India. Being supreme law of the country, every law enacted by the government must conform to the constitution. Dr. Bhimrao Ambedkar, as Chairman of the Constitution Drafting Committee, was the Chief Architect of Indian Constitution. The first president of the Constituent Assembly was Sachidanand Sinha later, Rajendra Prasad was elected president of the Constituent Assembly. The member of the Constituent Assembly met for the first time in the year 1946 on December 9.
AN OVERVIEW
The Constitution of India states that the Indian Executive is a major branch of the Parliamentary form of Government. The President, Vice-President, Council of Ministers, governor and Attorney General of India are some of the prominent heads who plays successful roles in executive branch.
The parliament of India is the federal and supreme legislative body of India. It consists of the office of President of India and two houses, the lower house, known as the Lok Sabha and the upper house, known as the Rajya Sabha. Any bill can become an act only after it is passed by both the houses of the parliament and assented by the President. Lok Sabha is also known as the “House of People”. It is more powerful of the two houses and can precede or overrule the Rajya Sabha in certain matters.
The Separation of Powers, also known as trias politica, is a model for a governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estate, each with separate and independent powers and areas of responsibility. In Indian Constitution there is express mention that the executive power of the Union and of a State is vested by the constitution in the President and the Governor, respectively, by Art. 53(1) and 154(1). Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. India democratic system also offers a clear separation of power under LOk Sabha, Rajya Sabha, and the President of India, who overlooks independent governing branches such as the Election Commission and the Judiciary.
This article is wriiten by Mr. Chaitanya M. Kulkarni. The author is a Law Student pursuing from Dr. Babasaheb Ambedkar College of Law (M.B), Nagpur. He ca ne reached at +91-9028493260.
In the Indian system it is found that the civil servants who are part of the administration i.e., the executive organ of the state carry forward the ministerial orders which are generally formulated as a result of the lengthy legislative discussions. In such cases we find a nexus of executive and legislative powers and this is a very key feature at the central and as the federal state levels.
It has been well said by Lord Action: -
“Power corrupts and absolute Powers tends to corrupt absolutely”.
Conferment of power in a single body leads to absolutism. But, event after distinguishing the functions, when an authority wields public power, then providing absolute and sole discretion to the body in the matters regarding its sphere of influence may also cause abuse of such power. Therefore, the doctrine of separation of powers is a theoretical concept and is impracticable to follow it absolutely.
The status of modern state is a lot more different than what is used to be. It has evolved a great deal from a minimal, non-interventionist state to an welfare state, wherein, it has multifarious roles to play, like that of a protector, controller and provider. This omnipresence of the state has rendered its function becoming diverse and problems, interdependent and any serious attempt to define and separate those functions would cause inefficiency in government. Hence, a distinction is made between ‘essential’ and ‘incidental’ powers. According to this differentiation one organ can’t claim the powers essentially belonging to other organ because that would be a violation of the principle of separation of powers. It has just happened that the other two organs, namely, judiciary and legislature, became unsuitable for undertaking the functions of this welfare state and as a consequence the functions of the executive increased. As controller and provider, the judicial processes were very time consuming and the legislature was overburden with work. Therefore, it was in natural scheme of things which made the administrators end up performing a variety of roles in the modern state including those of legislature and judiciary too, to an extent.
CONCLUSION:-
In a democratic country goals are enshrined in the constitution and the state machinery is then setup accordingly. And here it can be seen that constitutional provisions are made as such to support a parliamentary form of government where the principle can’t be followed rigidly. Constitutionalism, the philosophical concept of the constitution also insists on limitations being placed upon governmental power to secure basic freedoms of the individual. Hence, the conclusion drawn out of the study is that there is no strict separation of powers but the functions of the different branches of the government have been sufficiently differentiated. There should be cooperation and not unnecessary interference between the organs.
LLP & IT’S INCORPORATION IN INDIA- I
This article would through light on procedural aspect of LLP right from the incorporation to winding up.
INTRODUCTION
The concept of Limited Liability Partnership (LLP) in India is viewed as an alternative corporate business vehicle that provides the benefits of limited liability and also allows its members the flexibility of organizing their internal structure as a partnership based on a mutually arrived agreement. The revised Bill received the assent of the President of India on 7, January 2009.
LLP is a body corporate formed and incorporated under the LLP Act, which is a distinct legal entity separate from that of its partners. Introducing LLPs, as a new business structure would fill the gap between business firms such as sole proprietorship and partnership, which are generally unregulated and Limited Liability Companies, which are governed by the Companies Act, 1956. It will also provide an aid to the growth of service sector in India. Further, the provisions of the Indian Partnership Act, 1932 shall not apply to a limited liability partnership.
SALIENT FEATURES
The salient features of the act are as follows:
1. LLP can be formed by any two or more person, associated for carrying on a lawful business, by subscribing their names to incorporation document.
2. The rights and duties of LLP and its partners shall be governed by an agreement between partners or between LLP and the partners.
3. The LLP will be a separate legal entity, liable of its assets, with liability of the partners being limited to their agreed contribution in the LLP.
4. Every LLP shall have at least two partners and shall also have at least two individuals as Designated Partners, of whom at least one shall be resident in India.
5. The LLP shall be under an obligation to maintain annual accounts reflecting true and fair view of its state of affairs.
6. A firm, private company or an unlisted company is allowed to convert itself into LLP.
7. The act provides for the winding up of LLP which may be either voluntary or by the tribunal.
8. The provisions of the Indian Partnership Act, 1932 not applicable on LLP.
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This article has been authored by CA. Rajat Mohan. He is an Associate Member of Institute of Chartered Accountants of India (A.C.A.) and also passed final examination of Company Secretary Course conducted by Institute of Company Secretaries of India. has written 4 book on direct as well indirect taxes. He is Deputy Convener for GST Research Study Group of NIRC of ICAI. He is a regular contributor of articles on tax matters, which are published on several online portals and in the columns of reputed tax journals and magazines. He conducts seminar/workshops for professionals and students on ‘GST’ and ‘Income Tax and Service tax’ respectively. He ca be reached :rajat.mohan@icai.org
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Incorporation of Limited Liability Partnership (LLP)
The procedure for incorporation of LLP is same as that of Incorporation of a Company, which as given below:
Registration of User
In order to access this site every user needs to be registered with this site by filling an online form
1. Register yourself on the website of LLP, i.e. www.11p.gov.in by clicking on “Register” tab on top right hand corner of the page.
2. Also upload your digital signature certificate.
Obtaining Designated Partner Identification Number
Every Designated partner of the proposed LLP shall obtain “Designated Partner Identification Number (DPIN), by filing Form – 7 online.
1. Individual Designated Partner shall Log in to their account by entering user name and password. After this, open Form 7 Form E-forms and fill the required information.
2. Submit the application form online after Paying filing fee of Rs. 100 online. Note the provisional DPIN generated by the system.
3. Take the print out of the application form, affix a latest passport size photograph and get it attested/certified for submission physically, along with documentary evidences (proof of identify and proof of residence).
4. Deliver the printed and signed application form, along with the prescribed documents by hand/courier/registered post to the Office of Registrar, Ministry of Corporate Affairs, 3rd Floor, “Paryavaran Bhawan”, CGO Complex, Lodhi Road, New Delhi – 110003.
Reserve name of proposed LLP
Name of Proposed LLP may be reserved by any Partner/Designated Partner by filing Form-1.
• Individual Designated Partner of Partner shall Log in to their account by entering user name and password. After this, open Form 1 from E-forms and fill in the details. Details of minimum two designated partners of the proposed LLP, one of them must be a resident of India, is required to be filled in the application for reservation of name. Only individuals or nominees on behalf of the bodies corporate as partners can act as designated partners.
• Select name of the proposed LLP (max. 6 choices can be indicated).
• Attach Digital signatures, pay the necessary fee online and submit the e-form on LLP Portal.
Incorporation of LLP
This is the last step of incorporating a LLP, where Form-2 is required to be filed with registrar along with necessary documents.
1. After the name is reserved by the Registrar, log on to the portal and fill up Form-2 “Incorporation Document and Statement”.
2. Pay the prescribed fee for registration as specified under ‘Annexure A’ of the LLP Rules, 2009.
3. Statement in the e-form is to be digitally signed by a person named in the incorporation document as a designated partner having permanent DPIM and also to be digitally signed by an advocate/company secretary/chartered accountant/cost accountant in practice and engaged in the formation of LLP.
4. Following documents are required to be filed along with Form-2:
- Copy of authorization where the partner is a limited liability partnership, or company, or a limited liability partnership incorporated outside India or a company incorporated outside India.
- Proof of address of registered office of limited liability partnership.
- Details in respect of names of partners / witnesses and their signatures.
- Any other document as specified in the form.
5. Registrar will register the LLP, within 14 days of filing of Form-2 and a certificate of incorporation will be issued to LLP in Form-16.
Filing of other information
Following documents are required to be filed within 30 Days of incorporation of LLP or these may also be filed simultaneously at the time of filing Form-2.
• Form 3 – Details of LLP agreement
• Form 4 – Notice of Appointment of Partner/Designate Partner.
In the next part awe will discuss about other issues like conversion of Private & Unlisted Public Company into LLP & winding up of LLP .
WHAT IS PARTNERSHIP? AN INDIAN OVERVIEW
We live in globalised competitive world. Today’s business has not been one mans show as it was few years back. For any business to survive alliance is almost necessary. Alliance may be in any form like partnership, joint venture, mergers & acquisitions. This article would give a brief about partnership firm.
What is partnership?
In layman’s language its two or more persons coming together for common purpose. Sec. 4 of the Indian Partnership Act 1932 defines partnership as “it is the relation between persons who have agreed to share the profits of a business carried on by all or any one of them acting for all.” The persons who have entered into partnership with one another are called as partners & collectively known as firm. The firm has not a legal entity in India.
What are the essential elements of partnership?
1. Association of two or more persons.
There must be at least two or more persons to form a partnership. The partnership act is silent about the maximum numbers of partners in a firm. But the Indian Companies Act 1956 lays down that: (1) where the firm is carrying on banking business, the number of partners should not exceed 10, & (2) where the firm is carrying on any other business, the number of partners should not exceed 20. If the number of maximum partners exceeds these limits, the partnership becomes illegal association of persons.
2. Agreement between the persons.
As per sec.5 of Partnership Act, the relation of partnership arises from contract & not from status. The agreement of partnership may be expressed or implied.
3. Business.
Partnership can be formed only for the purpose of carrying on some business. Sec.2 (b) Partnership Act defines as it includes every trade, occupation or profession.
4. Sharing of Profits
The sharing of profits is only a prima facie evidence of the existence of partnership and this is not the conclusive test of it.
5. Business carried on by all or any one of them acting for all.
The mutual agency relationship amongst the partners is the cardinal principle which governs partnership. That means each partner is the agent of the firm as well as of the other partners.
Who can become the partners?
As per definition, “Partnership is an agreement.” Therefore all persons who are competent to contract can become partners. Sec.11 of the Indian Contract Act 1872 defines that “every person is competent to contract who is of the age of majority according to law to which he is subject and is of sound mind and is not disqualified from contracting by any law to which he is subject.”
Types of Partnership
Partnership can be classified:
A. Partnership at will (sec.7)
A partnership is called partnership at will when (a) the partnership is not for fixed period of the time and (b) when no provision is made as to when and how the partnership will come to an end. Partnership at will can be dissolved at any time when any partner chooses to do so after giving notice in writing to all other partners. The firm is then dissolved from the date mentioned in the notice as the date of dissolution and if no such date is mentioned then from the date of communication of the notice.
B. Partnership for fixed period
Where the partners agree to carry on its business for a definite term then the partnership is known as partnership for fixed period.
C. Particular Partnership
Particular partnership is a partnership formed for a particular adventure or undertaking. On completion of such undertaking or adventure the partnership is usually dissolved. But if all the partner mutually agrees to continue partnership then it becomes partnership at will.
You can also read my article on Limited Liability Partnership. My next few articles will be on how to get partnership firm registered in India? & Dissolution of partnership firm.
DIRECTORS NOT RESPONSIBLE FOR DISHONOURED CHEQUE
Recent Supreme Court Judgment has brought cheers on director’s faces of the companies. The Supreme Court ruled last week that prosecution for issuing a cheque which was dishonoured for want of credit in the bank can be initiated only against the person who issued the cheque and not against the company or directors who were not aware of it. It quashed the Madras High Court order to try the company, the chairman and the managing director in judgment, PJ Agro Tech Ltd. Vs Water Base Ltd. The two companies have entered into an agreement for distribution of prawn feed in Andhra Pradesh. However, it did not succeed and PJ Agro authorized the other company to collect its due from customers who has not paid for the goods. It appointed a coordinator for the purpose. He issued a cheque to Water Base which bounced, leading to the filing of charges under The Negotiable Instrument Act. The Supreme Court explained that the coordinator might have issued the cheque for the benefit of PJ Agro, but the directors of the latter company were not responsible for the default.